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(New York) – Members of the United Nations Security Council should condemn attempts by the Libyan National Transitional Council (NTC) to prevent accountability for serious and ongoing crimes committed in Libya. The International Criminal Court (ICC) prosecutor, Luis Moreno-Ocampo, will brief the Security Council on his Libya investigation on May 16, 2012.

On May 2, Libya’s NTC enacted a new law that grants a blanket amnesty to those who committed crimes if their actions were aimed at “promoting or protecting the revolution” against Muammar Gaddafi. Human Rights Watch has documented grave violations committed by anti-Gaddafi militias during the armed conflict as well as ongoing killings, torture, and forced displacement.

“The Security Council should make clear to the Libyan government that when it referred the situation to the ICC before the war, it never intended to allow a victors’ justice,” said Richard Dicker, international justice director at Human Rights Watch. “Human Rights Watch has documented horrendous crimes in Libya even after the end of Gaddafi’s rule, and the NTC should know that the ICC can still probe abuses there.”

The new law, Law 38, On Some Procedures for the Transitional Period, says there shall be no penalty for “military, security, or civil actions dictated by the February 17 Revolution that were performed by revolutionaries with the goal of promoting or protecting the revolution.” The imposition of this law appears to be a strong sign that the Libyan authorities are unwilling to investigate crimes committed by all sides, Human Rights Watch said.

Any grant of amnesty by the NTC has no legally-binding effect on other national or international courts, such as the ICC, that have jurisdiction over serious violations of international law, Human Rights Watch said. The ICC has ongoing jurisdiction over war crimes and crimes against humanity committed in Libya since February 15, 2011, taking into account, among other factors, whether the Libyan authorities are willing and able to prosecute those responsible for these crimes.

In an April 4 letter to the military and civilian leadership in Misrata, Human Rights Watch alerted the authorities to serious crimes being committed by some Misrata militias, including the mistreatment of detainees in their custody, and said the Misrata leadership could be held accountable for these crimes, also by the ICC.

In an April 11 response, the Misrata Local Council said it had formed a security committee charged with preventing violations in detention facilities. However, three more detainees died on April 13, possibly due to torture, according to the UN. The Misrata Military Council sent Human Rights Watch a reply on May 3, stating that no violations have occurred in prisons under their supervision.

“The Libyan government hasn't been able to rein in the abuses committed by anti-Gaddafi militias, let alone hold those responsible to account,” said Dicker. “With the NTC now openly trying to shield militia leaders from justice, it falls to the ICC prosecutor to vigorously examine these crimes.”

The ICC judges granted arrest warrants for Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Abdullah Sanussi, his intelligence chief, on June 27, 2011. The three were wanted on charges of crimes against humanity for their roles in attacks on civilians, including peaceful demonstrators, in Tripoli, Benghazi, Misrata, and other locations in Libya.

The ICC prosecutor's briefing to the Security Council is expected to provide an overview of the investigative activities of the prosecutor’s office to date. In his last briefing, in November 2011, the ICC prosecutor indicated that his office was focused on collecting evidence against Saif al-Islam Gaddafi and Sanussi, in anticipation of their arrest and eventual trial in The Hague. The prosecutor also reported that he would be investigating allegations of sexual violence.

At the time, the prosecutor also took note of allegations of crimes committed by NTC-related forces. He indicated that his office was considering whether additional prosecutions were warranted and would evaluate the possibility of further investigations.

While the ICC's proceeding against Muammar Gaddafi was terminated following his death on October 20, anti-Gaddafi forces apprehended Saif al-Islam Gaddafi on November 19 in southern Libya and are holding him in the town of Zintan. Sanussi was apprehended on March 17 in Mauritania.

On May 1, Libya challenged the admissibility of the case against Saif al-Islam Gaddafi and requested the postponement of his surrender to the ICC, pending a decision on the challenge. The ICC judges have invited other parties to file submissions in response to Libya's challenge by June 4, and have yet to rule on the postponement request.

The ICC is a court of last resort. Under existing ICC case law, for the court to find a case inadmissible, there must be national proceedings encompassing both the person and the conduct that are the subject of the ICC case. Furthermore, the state challenging the admissibility of the case must demonstrate its genuine willingness and ability to conduct those proceedings. Ultimately, it is up to the ICC judges to determine whether national proceedings meet the criteria for a successful admissibility challenge.

Following the end of Gaddafi’s rule, Security Council members that initially championed resolution 1970 referring Libya to the ICC have been largely silent on Libya’s obligation to cooperate with the court.

“By using the court’s procedure on challenging admissibility, Libya is operating according to the ICC's rules and procedure as required by resolution 1970,” Dicker said. “We look to the Security Council to ensure that the NTC continues to abide fully with the judges’ decisions on the issues before the court, no matter the outcome.”

The unanimous Security Council resolution requires the Libyan authorities to cooperate fully with the court. Adhering to the court’s procedures is a key component of Libya’s cooperation with the ICC, Human Rights Watch said.

Because the ICC has no police force of its own, it also depends on the cooperation of national authorities for the arrest and surrender of suspects. States parties to the ICC have a legal obligation to cooperate with the court. Following Sanussi’s apprehension on March 17, a request for his arrest and surrender to the ICC was transmitted to the minister of foreign affairs in Mauritania. While Mauritania is not a party to the court, Security Council resolution 1970 urges all states to cooperate with the ICC.

According to information in Libya's admissibility challenge, Sanussi is in poor health. Mauritania should allow him immediate access to a lawyer and to medical care, Human Rights Watch said.